United States v. Lanares-Mendez , 208 F. App'x 272 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5119
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALDO LANARES-MENDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-209)
Submitted: October 25, 2006 Decided: December 4, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
David A. Brown, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Waldo Lanares-Mendez pled guilty to illegally reentering
the United States after being deported, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2000), and was sentenced to a term of sixty
months imprisonment. Lanares-Mendez appeals his sentence,
contending that the district court’s imposition of a sixteen-level
enhancement under U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A) (2004), based on his prior conviction for
harboring an illegal alien, violated the Sixth Amendment. He also
argues that counting the same conviction in his criminal history
score resulted in an unreasonable sentence. We affirm.
Lanares-Mendez was deported in 2000 after he was
convicted of harboring an illegal alien. A sixteen-level increase
in offense level applies under USSG § 2L1.2(b)(1)(A) when the
defendant has previously been deported after a conviction for an
alien smuggling offense. Lanares-Mendez asserted at sentencing
that the prior conviction was not an alien smuggling offfense
because he had only given water to persons entering the country as
a charitable act.* However, the district court agreed with the
government that the conviction met the definition of an “alien
smuggling offense,” as defined in the guideline commentary, which
states that it “has the meaning given that term in section
*
According to the presentence report, Lanares-Mendez was
convicted, under an alias, of harboring a illegal alien at an
address in Texas.
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101(a)(43)(N) of the Immigration and Nationality Act (8 U.S.C.
§ 1101(a)(43)(N) [2000]).” An “alien smuggling offense” is defined
in § 1101(a)(43)(N) as –
[A]n offense described in paragraph (1)(A) or (2) of
section 1324(a) of this title (relating to alien
smuggling), except in the case of a first offense for
which the alien has affirmatively shown that the alien
committed the offense for the purpose of assisting,
abetting, or aiding only the alien’s spouse, child, or
parent (and no other individual) to violate a provision
of this chapter[;]
Lanares-Mendez argues that it was a violation of the
Sixth Amendment to increase his offense level based on a prior
conviction for alien smuggling when that fact was not charged in
the indictment and determined beyond a reasonable doubt. Lanares-
Mendez acknowledges that the fact of a prior conviction need not be
charged in the indictment or proved beyond a reasonable doubt. See
United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.) (holding
that United States v. Booker, 543 U.S. 220 (2005), reaffirmed
exception set out in Almendarez-Torres v. United States, 523 U.S.
224 (1998), for sentence enhancements based on recidivism), cert.
denied, 126 S. Ct. 640 (2005). Because the district court
correctly applied the existing law, we conclude that no error
occurred.
Next, Lanares-Mendez argues that, because the sentencing
guidelines permit his prior conviction and sentence for alien
smuggling to be used to increase his offense level and counted in
his criminal history as well, his sentence is unreasonable. He
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suggests that this court should remand his case so that the
district court may consider whether a downward departure is
warranted to “cure the double counting.”
This court has held that a sentence within a properly
calculated guideline range is presumptively reasonable. United
States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006). A sentence
may be procedurally unreasonable if, for instance, the court fails
to make necessary fact findings or adequately explain its reasons
for imposing the sentence. Id. at 434. A sentence may be
substantively unreasonable if the court misapplies the guidelines
or “rejects policies articulated by Congress or the Sentencing
Commission.” Id. In effect, Lanares-Mendez is arguing that his
sentence is substantively unreasonable because the district court
failed to reject the policy adopted by the Sentencing Commission on
double counting. We conclude that he has not shown that his
sentence is unreasonable.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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